1 2 I. The court instructed the jury that the plaintiffs had failed to sustain their cause of action, and that, therefore, they could not find in plaintiffs’ favor on their cause of action, and of this plaintiffs complain. Plaintiffs’ cause of action is the alleged agreement to furnish a purchaser, and that they performed the same by furnishing one Berner, who purchased the land from the defendant. The plaintiffs each testify to the agreement as alleged, that they brought Mr. Berner and the defendant together-, and that Berner purchased the land. Berner testifies: “That it was only .through the plaintiffs that I became aware that said land was for sale, and through no one else, and that I finally did purchase said land from Wedeking, and that it was transferred to my father, through me, by warranty deed; that I have paid for the same as per the agreement. between me and Wedeking; that all of the talking that I did in negotiating for the sale of this land was with the defendant.” Defendant does not, in his testimony, deny that there was an agreement, nor that plaintiffs furnished Berner as a purchaser, and that he sold the land to him. He testifies' that he was to pay plaintiff all over twenty-seven dollars per acre that they could sell the land for. Under the evidence, the only disputed fact was whether plaintiffs were to receive one dollar per acre, or all over twenty-seven dollars per acre, as their compensation. It is true, there was no evidence to sustain the alleged fraud, nor was it required to sustain plaintiffs’ cause of action. It appears that Mr. Berner, the purchaser, caused the land to be conveyed to his father, but this in no wise defeats plaintiffs’ right to recover. We think the. court erred in not submitting plaintiffs’ cause of action to the jury.
*4493 II. In instructing with respect to the counterclaim, the court told the jury that the attachment was wrongfully sued out; that the defendant was entitled to recover actual damages, and that the evidence showed that he had sustained such damages, in the sum of nineteen dollars; and that their verdict should be in his favor for that amount. The issues joined on the counter-claim should have been submitted to the jury. The evidence of the defendant shows that he had been deprived of the use of his money held by garnisment under the attachment, but there was some contention as to the length of time during which it had been so withheld. He also testified that he had incurred expenses in defending against the attachment, in the way of attorney’s fees and traveling expenses. These items are legitimate elements of damages, but, there being a contention with respect thereto, the same should have been submitted to the jury. For the reasons stated we conclude that the judgment of the district court must be reversed.
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